Van der Hoven v Van der Westhuizen (48677/16) [2017] ZAGPPHC 979 (22 December 2017)

Van der Hoven v Van der Westhuizen (48677/16) [2017] ZAGPPHC 979 (22 December 2017)

The court found that there were reasonable prospects that another court may reach a different conclusion regarding the status of the oral agreement, specifically whether it constituted a pre-incorporation agreement subject to the Alienation of Land Act 1981, and whether the applicant should have been allowed to amend the particulars of claim. The court determined that the issues raised were sufficiently complex and material to warrant consideration by a full court. Accordingly, leave to appeal to the full court of the division was granted.

Citation
[2017] ZAGPPHC 979
Parties
Applicant: HJH Van der Hoven; Respondent: DJ Van der Westhuizen
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
22 December 2017
Case Number
48677/16
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Following Dismissal of Claim
Outcome
Leave to appeal to the full court of this division is granted.
Judges
TLHAPI VV
Legal Topics
Alienation of Land Act, Oral Agreement, Pre Incorporation Agreement, Amendment of Particulars of Claim
Land and Property Civil Procedure Alienation of Land Act Oral Agreement Pre Incorporation Agreement Amendment of Particulars of Claim

Case Brief

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Parties

HJH Van der Hoven

Applicant

DJ Van der Westhuizen

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal Following Dismissal of Claim

Legal Issues

  1. 1 Whether the oral agreement constituted a pre-incorporation agreement subject to the Alienation of Land Act 1981.
  2. 2 Whether the court erred in finding the claim was for restitution only, not restitution and damages.
  3. 3 Whether the plaintiff should have been granted leave to amend the particulars of claim.

Ratio Decidendi

The court found that there were reasonable prospects that another court may reach a different conclusion regarding the status of the oral agreement, specifically whether it constituted a pre-incorporation agreement subject to the Alienation of Land Act 1981, and whether the applicant should have been allowed to amend the particulars of claim. The court determined that the issues raised were sufficiently complex and material to warrant consideration by a full court. Accordingly, leave to appeal to the full court of the division was granted.

Court Disposition

Leave to appeal to the full court of this division is granted.

Orders

  • Leave to appeal to the full court of this division is hereby granted.